Fair use/dealing

lit-lorn-strait

Dear Geist,
As a fifty-year songwriter and a newly published author of a memoir framed by my own song lyrics, but occasionally using snippets of other writers’ songs, I was surprised that your reply to Heather B., in the Lit-Lorn post Song in Print, did not mention “fair use.” While I’m aware that the definition of fair use is somewhat amorphous, it could be of use to this author.
—Jesse McRae, Bellingham WA
Dear Jesse,
Disclaimer: We are not lawyers and this answer is not legal advice. It is a summary of our knowledge and experience on the subject.
Fair use is a US legal doctrine that permits the use of certain copyright material without securing permission from the copyright holder. The most familiar such use is to quote a very short bit of text, such as lyrics.
In Canada we don’t have fair use; we have “fair dealing,” an exception to copyright infringement that is not defined or quantified in the legislation. It is a defence rather than a provision, so writers, publishers, teachers, librarians and other quoters take their chances when they use quoted material without permission. Among other things, fair dealing has to do with use that does not involve reproducing a substantial part of the work. But the Copyright Act does not define “substantial” or specify percentages, so the burden of proof is on the quoter. As we pointed out in another Lit-Lorn query on the subject, Quotability, “l yrics are a good example of short being substantial. Even a couple of lines can constitute a large portion of a song, and permission fees for lyrics can be real eyebrow-raisers.”
In short, it’s up to each writer and publisher whether to include quoted lyrics or any other text without permission. But we do feel duty-bound to point out that they are taking a chance by doing so.
Thanks for your perspective on this thorny issue.
—The Editors